Friday, December 2, 2011

Take Me to Your Fjord

Oh to be in Norway now that winter's nigh!

Well, maybe not.* Nothing against Norway which has many fjords to recommend it and which I'd actually like to visit someday, but there is much to keep me occupied here. Still, anywhere that can yield this headline to an AP story in the Gray Lady is worth attention.

Norway: Killer of 77 Was Insane During Rampage, Prosecution Says

I mean, really? The prosecution says he was insane? The prosecution? The fucking prosecution says he was nuts?

Here it's a full scale battle. Consider Anthony Sowell, convicted killer of 11. He kept the bodies in and around his home for years. His lawyer, John Parker, explained to the jury that

[A]nyone who lives in a house for two years with the rotting remains of his murder victims must have a mental problem.

Which seems kinda self-evident to me, though the prosecutor disputed it. As I said in full snark, quoting the AP report on the jury argument,

Assistant prosecutor Pinkey Carr said Sowell deserves to die for his crimes and responded to the comments about his mental condition by saying: “He’s crazy like a fox. He’s evil.”

See, it was all carefully done so that someday when he was prosecuted for the killings he could argue that he must have been insane. But, nah. Criminal mastermind.

Which is, of course, bullshit.

But it's the prosecutorial mindset. And, oh, yeah, it's also our law.

Here's the Ohio statute on being not guilty by reason of insanity (which we call NGRI for simplicity).**

A person is “not guilty by reason of insanity” relative to a charge of
an offense only if the person proves, in the manner specified in section
2901.05 of the Revised Code, that at the time of the commission of the
offense, the person did not know, as a result of a severe mental disease
or defect, the wrongfulness of the person’s acts.

Of course, that's not the same as just being crazy as a bedbug. And actually Parker was arguing to the jury that they ought to spare Sowell's life, not find him NGRI, so the standard isn't perfect but you get the point. Sowell was clearly nuts. Just not legally nuts so as to be locked up in what used to be called an insane asylum for the rest of his life instead of locked up in prison until the state gets around to murdering him.

But back to Norway for a minute where the standards make some sense and where the prosecutor actually said they applied. Here's the test as I understand it from the media (and I'm summarizing, not quoting).

Was the person psychotic at the time of the offense? That is, was he acting under gross delusions about reality so that he didn't ?

Now, that's something less than, say, he thought he was playing ping pong but was in fact raping and pillaging. But if you're talking about criminal responsibility it makes some sense. If a person is so out-of-touch with reality that he has no grasp of the world, how can we say he's fully responsible for his acts? Well, we can in this country because we do. (Or is it that we do because we can?) But not in Norway.

Naturally, we're horrified by the Norwegian approach. Debra Saunders in the San Francisco (yes, that San Francisco) Chronicle.

So why do I think Oslo's chosen experts have decided that Breivik was
insane? They're so sublime, they don't know how to recognize evil.

Of course, another reason might be because the experts spent a whole shitload of time examining him and concluded that he was psychotic and delusional which is the Norway standard. Here's the AP story in the Times again.

The court-ordered assessment by two psychiatrists found that Mr.
Breivik, 32, an anti-Muslim militant, was psychotic during the attacks.
It will be reviewed by a forensic panel before the Oslo district court
rules on his mental state. The conclusions contrasted with earlier comments by the head of the
review panel, who said in late July that it was unlikely that Mr.
Breivik would be declared insane because the attacks were so carefully
planned and executed. But prosecutors insisted that the psychiatric
report described a man living in a “delusional universe,” a paranoid
schizophrenic who had lost touch with reality.

But then we don't care about that. (See my earlier post on the Norwegian horror in which I explored Professor Thane Rosenbaum's lament that our criminal justice system doesn't channel Nancy Grace on guilt and punishment.)

The bedrock assumption of our jury system (criminal, but civil too, by the way) is that the collective wisdom of 12 ordinary folk can tell when a witness is lying (or reporting on misperception) and when one is telling the truth based on watching and listening to the witness testify on direct and then on cross-examination. Whether or not that's true, direct testimony and cross examination will not help jurors accurately figure out whether computer models that show global warming will end civilization as we know it within 100 years are more accurate than computer models that show it will have no substantial effect.

That is, expert testimony is so different in kind from other testimony that when experts disagree, juries can only guess. Hell, if the scientists can't agree about global warming, how can we expect the jurors figure it out.

Which means, really, that if the experts disagree on an element of the offense, it clearly can't really have been proved beyond a reasonable doubt since that would mean the other (court-certified) expert was offering an unreasonable (and therefore improperly admitted) opinion.

And of course that means that our system is wholly fucked, which you knew anyway (or knew I thought so, at least, if you've been reading this blawg for a while - and if so, how come you didn't convince the ABA to make me a finalist in the blawgoff? But I digress).

It's a simple point, made more complicated by Pfaff's effort at quantification and invocation of Rumsfeld Koan.***

Of course, juries are already free to find a “known unknown” if they wish. I want to push the issue further: as a matter of law, should wecompelsuch a non-finding? Even before getting to questions of jury competence, is there some sort of particularly important meta-evidence we get from credible dueling experts? Does the very inability to agree suggest, at least in criminal cases, that as a matter of law there is no fact for the jury to find? We know that we don’t know, and it is unreasonable to argue that you do know in such a setting.

Even if you’re not convinced by this argument—and I’m still trying to decide if I am—the jurors’ lack of epistemic competence may still play a role: while perhapsin theorythere is some fact to be “found” here, the people we are asking to find it are effectively blind. Jury pools are not well-educated: at best about half are college graduates (and this from astudyset in Connecticut, thesixth-besteducated state in the country), andfewcollegegraduates have real math/science training. So if dueling experts do not theoretically demand a non-finding, does the clear inability of the jury pool to make the necessary finding along rational lines do so pragmatically?

Really, it wouldn't matter if they jurors all held doctorates in the relevant field. If the goal is to determine with which of two conflicting reasonable opinions is unreasonable (which when you think about it is precisely what we ask jurors to do in evaluating expert testimony) the only possible answer is neither and therefore the point isn't proved adequately.

There is, of course, a reason the public sneers at expert testimony. Don't believe they do? Consider New Mexico where in 1995 a proposed amendment to a regulatory bill for psychologists was actually passed by the state senate.

When a psychologist or psychiatrist testifies during a defendant's competentcy hearing, the psychologist or psychiatrist shall wear a cone-shaped hat that is not less than two feet tall. The surface of the hat shall be imprinted with stars and lightning bolts.

Additionally, a psychologist or psychiatrist shall be required to don a white beard that is not less than 18 inches in length, and shall punctuate crucial elements of his testimony by stabbing the air with a wand. Whenever a psychologist or psychiatrist provides expert testimony regarding a defendant's competency, the bailiff shall contemporaneously dim the courtroom lights and administer two strikes to a Chinese gong.

Honest.

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* I was all set to do some snark about the weather. In fact, I began with this:

I'm no fan of warm weather (once it hits 70 I want to put on the A/C), and I'm a big fan of cloud cover rather than sun (had god wanted us to be up and out during the day, she'd never have invented the light bulb).

Then I was going to say that living in Helsinki would be like living in a house we rented one fall semester in Pittsburgh when we were in college, back in the days of the ancien régime. Among other unlikely features, the place that had big holes in all the outside walls where the landlord really intended to put windows some day. I remember one December night, wind whipping through the place, snow settling on the furniture, me sitting on the floor in front of the stove with the oven set at 500 and the door wide open to let some of the heat into the kitchen, bundled up in winter coat and gloves, typewriter before me, trying to type a paper. Except I looked up Helsinki weather to stick in some numbers and it turns out that Helsinki actually has a pretty fair climate so the hell with it.

** I'm quoting Ohio although the standards differ from state to state and
off to the feds, but Ohio's test is within striking distance of the
others.

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.